Najam, J.
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Derrell Woods appeals the post-conviction court’s denial of his amended petition for post-conviction relief. Woods presents a single dispositive issue for our review, namely, whether the post-conviction court erred when it concluded that Woods was not denied the effective assistance of trial counsel. We reverse.
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Woods contends that his trial counsel’s performance was deficient in two respects. However, because we find one of Woods’ allegations dispositive on appeal, we need only address whether his trial counsel was ineffective when he did not communicate to Woods a guilty plea offer from the State. In particular, Woods presented evidence to the post-conviction court, without objection, that, on June 23, 2003, [footnote omitted] John Maciejczyk, the prosecutor, sent a signed and dated letter, on official letterhead, to R. Brent Zook, Woods’ defense counsel, proposing [that Woods would plead guilty to B-felony robbery (rather than A-felony robbery as charged) and two D-felonies, with sentencing left to the court’s discretion; and dismissal of a B-felony carjacking charge)]. Woods also presented evidence that Zook received that letter on June 25, 2003.
Woods testified at the hearing on his petition for post-conviction relief that Zook never communicated that plea offer to him and that, if he had, Woods would have accepted the offer. Woods testified further that, sometime after June 2003, Zook communicated an offer to have Woods plead guilty to the A felony robbery with sentencing left to the trial court’s discretion. Zook recommended to Woods that he reject that offer, which Woods did.
Zook was deceased at the time of Woods’ post-conviction hearing. In lieu of Zook’s testimony, Woods called Clifford Williams, the Chief Public Defender for Elkhart County, who had worked with Zook and who had reviewed Zook’s file regarding Woods’ defense in [the two cause numbers at issue]. … Maciejczyk did not testify at the post-conviction hearing, but he submitted an affidavit stating that he did not have any recollection of plea negotiations in Woods’ case.
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In its findings and conclusions, the post-conviction court stated in relevant part as follows:
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42. As previously noted, Petitioner’s counsel is now deceased. Mr. Williams, Chief Public Defender, … noted a document on which was written what he presumed to be an offer; however, it was not ascertainable from where the document originated. … Mr. Williams stated that it was uncertain if the document was prepared by the Public Defender’s Office or the State, and the document did not establish whether or not it was presented to Petitioner or if so, at what stage. There was a note in the file in what Mr. Williams believed to be Mr. Zook’s handwriting that Mr. Zook planned to see Petitioner, but beyond that, Mr. Williams said that it was not possible with any degree of certainty to say what the entries meant or who prepared the documents.
43. Mr. Williams’ testimony establishes that the document relied upon by Petitioner in support of his contention that his counsel failed to produce an acceptable plea offer to him is non-discernible hearsay. No other evidence in this regard was presented but for Petitioner’s self-serving statement that he would have pled to a more favorable offer had it been presented. Accordingly, the court cannot draw the conclusion based on the evidence before it that Petitioner’s counsel was ineffective in his representation of Petitioner with respect to any plea negotiations in this case.
(emphases added).
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We hold that the evidence does not support the post-conviction court’s findings that the origin of the June 23, 2003, plea offer letter is not ascertainable and that the letter consists wholly of “non-discernible hearsay.” To the contrary, there was no dispute at the hearing that the letter was prepared by Maciejczyk, signed and dated, and transmitted to Zook, whose office [stamped] the letter [as “received”] two days later. Neither was there any dispute that the letter contained a plea offer with clear terms. [Footnote omitted.] We agree with the post-conviction court that the handwritten notations on Petitioner’s Exhibit 6 are non-discernible hearsay. But the same letter without notations admitted as Petitioner’s Exhibit 11 does not suffer from any such infirmity and was obviously prepared by Maciejczyk, as indicated by the letterhead and his signature.
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In sum, … the State extended a plea offer to Zook for Woods to plead guilty to Class B felony robbery and two Class D felonies with sentencing left to the trial court’s discretion. That plea would have resulted in a maximum possible aggregate sentence of twenty-six years. The undisputed evidence shows that Zook never communicated that plea offer to Woods and that, if he had, Woods would have accepted the plea. Instead, following a bench trial, [Woods was convicted of Class A felony robbery and] the trial court sentenced Woods to forty-five years with ten years suspended.
We hold that Zook rendered ineffective assistance of counsel when he did not communicate the June 23, 2003, plea offer to Woods, which prejudiced Woods when he was convicted of Class A felony robbery and sentenced to forty-five years. We therefore reverse the post-conviction court’s judgment and Woods’ conviction. …
Reversed.
Riley, J., concurs.
May, J., dissents with separate opinion.
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May, Judge, dissenting.
When a petitioner appeals the denial of a petition for post-conviction relief, which is a negative judgment, we may reverse only if that petitioner demonstrates “the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” [Citation omitted.] I do not believe Woods has met that burden and, accordingly, I dissent.
… Zook is deceased and Maciejczyk has no memory of the plea negotiation process. Thus, even presuming there was a valid plea offer for Class B Felony robbery,11 the only evidence that Zook did not communicate such offer to Woods came from the testimony of Woods himself. The postconviction court was not required to believe Woods’ testimony about that fact, even if his testimony was “undisputed.” [Citation omitted.] Nor are we permitted to find Woods’ testimony credible and of sufficient weight to justify reversing the post-conviction court. [Citation omitted.]
Woods had the heavy burden of overcoming the “strong presumption that counsel rendered adequate service.” [Citation omitted.] Because I do not believe, based on the record before us, that our standard of review permits us to overturn the post-conviction court’s decision, I would affirm it.
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Derrell Woods appeals the post-conviction court’s denial of his amended petition for post-conviction relief. Woods presents a single dispositive issue for our review, namely, whether the post-conviction court erred when it concluded that Woods was not denied the effective assistance of trial counsel. We reverse.
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Woods contends that his trial counsel’s performance was deficient in two respects. However, because we find one of Woods’ allegations dispositive on appeal, we need only address whether his trial counsel was ineffective when he did not communicate to Woods a guilty plea offer from the State. In particular, Woods presented evidence to the post-conviction court, without objection, that, on June 23, 2003, [footnote omitted] John Maciejczyk, the prosecutor, sent a signed and dated letter, on official letterhead, to R. Brent Zook, Woods’ defense counsel, proposing [that Woods would plead guilty to B-felony robbery (rather than A-felony robbery as charged) and two D-felonies, with sentencing left to the court’s discretion; and dismissal of a B-felony carjacking charge)]. Woods also presented evidence that Zook received that letter on June 25, 2003.
Woods testified at the hearing on his petition for post-conviction relief that Zook never communicated that plea offer to him and that, if he had, Woods would have accepted the offer. Woods testified further that, sometime after June 2003, Zook communicated an offer to have Woods plead guilty to the A felony robbery with sentencing left to the trial court’s discretion. Zook recommended to Woods that he reject that offer, which Woods did.
Zook was deceased at the time of Woods’ post-conviction hearing. In lieu of Zook’s testimony, Woods called Clifford Williams, the Chief Public Defender for Elkhart County, who had worked with Zook and who had reviewed Zook’s file regarding Woods’ defense in [the two cause numbers at issue]. … Maciejczyk did not testify at the post-conviction hearing, but he submitted an affidavit stating that he did not have any recollection of plea negotiations in Woods’ case.
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In its findings and conclusions, the post-conviction court stated in relevant part as follows:
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42. As previously noted, Petitioner’s counsel is now deceased. Mr. Williams, Chief Public Defender, … noted a document on which was written what he presumed to be an offer; however, it was not ascertainable from where the document originated. … Mr. Williams stated that it was uncertain if the document was prepared by the Public Defender’s Office or the State, and the document did not establish whether or not it was presented to Petitioner or if so, at what stage. There was a note in the file in what Mr. Williams believed to be Mr. Zook’s handwriting that Mr. Zook planned to see Petitioner, but beyond that, Mr. Williams said that it was not possible with any degree of certainty to say what the entries meant or who prepared the documents.
43. Mr. Williams’ testimony establishes that the document relied upon by Petitioner in support of his contention that his counsel failed to produce an acceptable plea offer to him is non-discernible hearsay. No other evidence in this regard was presented but for Petitioner’s self-serving statement that he would have pled to a more favorable offer had it been presented. Accordingly, the court cannot draw the conclusion based on the evidence before it that Petitioner’s counsel was ineffective in his representation of Petitioner with respect to any plea negotiations in this case.
(emphases added).
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We hold that the evidence does not support the post-conviction court’s findings that the origin of the June 23, 2003, plea offer letter is not ascertainable and that the letter consists wholly of “non-discernible hearsay.” To the contrary, there was no dispute at the hearing that the letter was prepared by Maciejczyk, signed and dated, and transmitted to Zook, whose office [stamped] the letter [as “received”] two days later. Neither was there any dispute that the letter contained a plea offer with clear terms. [Footnote omitted.] We agree with the post-conviction court that the handwritten notations on Petitioner’s Exhibit 6 are non-discernible hearsay. But the same letter without notations admitted as Petitioner’s Exhibit 11 does not suffer from any such infirmity and was obviously prepared by Maciejczyk, as indicated by the letterhead and his signature.
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In sum, … the State extended a plea offer to Zook for Woods to plead guilty to Class B felony robbery and two Class D felonies with sentencing left to the trial court’s discretion. That plea would have resulted in a maximum possible aggregate sentence of twenty-six years. The undisputed evidence shows that Zook never communicated that plea offer to Woods and that, if he had, Woods would have accepted the plea. Instead, following a bench trial, [Woods was convicted of Class A felony robbery and] the trial court sentenced Woods to forty-five years with ten years suspended.
We hold that Zook rendered ineffective assistance of counsel when he did not communicate the June 23, 2003, plea offer to Woods, which prejudiced Woods when he was convicted of Class A felony robbery and sentenced to forty-five years. We therefore reverse the post-conviction court’s judgment and Woods’ conviction. …
Reversed.
Riley, J., concurs.
May, J., dissents with separate opinion.
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May, Judge, dissenting.
When a petitioner appeals the denial of a petition for post-conviction relief, which is a negative judgment, we may reverse only if that petitioner demonstrates “the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” [Citation omitted.] I do not believe Woods has met that burden and, accordingly, I dissent.
… Zook is deceased and Maciejczyk has no memory of the plea negotiation process. Thus, even presuming there was a valid plea offer for Class B Felony robbery,11 the only evidence that Zook did not communicate such offer to Woods came from the testimony of Woods himself. The postconviction court was not required to believe Woods’ testimony about that fact, even if his testimony was “undisputed.” [Citation omitted.] Nor are we permitted to find Woods’ testimony credible and of sufficient weight to justify reversing the post-conviction court. [Citation omitted.]
Woods had the heavy burden of overcoming the “strong presumption that counsel rendered adequate service.” [Citation omitted.] Because I do not believe, based on the record before us, that our standard of review permits us to overturn the post-conviction court’s decision, I would affirm it.